Saturday, 9 February 2008

The Archbishop of Canterbury has opened up a debate on a possible place for Shariah law within, or alongside, British law. There are two separate questions. First, what are the arguments for and against having different legal systems within the same country? Second, what should we think of the particular example of Shariah law, given its nature?

On the first question, it strikes me that there is a lot of merit in having a single system, applicable to everyone. Within it, one can have different systems of arbitration which people involved in, for example, a commercial dispute can choose. Indeed, that happens now. Most commercial disputes that get as far as a formal hearing before an independent party are settled by arbitration, rather than by the courts. But commercial disputes have the important feature that they do not necessarily involve our deepest values or feelings. Resolving a commercial dispute can be like solving any other technical problem. In that respect, they are unlike disputes which fall within the area of family law. It would be very dangerous to extrapolate from the success of commercial arbitration to other areas. In particular, once the passions are stirred, the processes of choosing, and accepting as appropriate, an arbitrator with a particular way of approaching disputes, take on a new colour. It is much less obvious that all parties will be genuinely free in making their choice. And once children are involved, we cannot think of them as choosing or accepting a given arbitration process. We can easily think that a given process would be appropriate, by identifying a child as Christian, Muslim or whatever. But children have not on the whole made free and informed choices of religion. In truth, there is no such thing as a Christian or a Muslim child, only a child of Christian or Muslim parents. So I would confine arbitration which can bind the parties to cases where the issues are financial, rather than being issues of life and love. Of course there is a role for non-binding arbitration practically everywhere in the area of civil, as opposed to criminal, law. It shades into friendly advice. If we were not able to resolve most of the issues between us by discussion and compromise but always litigated, society would grind to a halt.

Turning to Shariah law in particular, there are areas where we have already made accommodations, in particular tweaks to the tax system to handle transactions that are in substance payments of interest but in form something else. Those tweaks strike me as harmless. The transactions might well be chosen by non-Muslims, because of the ways in which they distribute risk. Equally, the tax system is tweaked to accommodate securitisations and various types of derivative. Again, we are in the emotionally boring world of commerce.

The proposal is of course to go further, and in particular to move to family relationships. Here there is an enormous danger, which runs very deep. The Islamic tradition is to accord separate roles to men and women - as is the Christian tradition, to some extent. This is a disastrous starting point. You can accord all sorts of rights and honour to women, but if you identify them as a separate group from men, the rot has already set in. The racial segregationists of the southern United States relied on the doctrine of "separate but equal", which meant nothing of the sort. We must join the Muslim women of Ontario who saw off the threat of Shariah there and set ourselves firmly against any role for Shariah law in resolving disputes that involve personal relationships. The problem is not that all of the doctrines of Shariah law are wrong. As in any legal system, some are good and some are bad - although Shariah does have an ample share of bad doctrines. The problem is that the starting point, the basic vision of society as comprising two separate groups with different roles, is totally antithetical to the individual liberty of all people and to equal opportunity for all people to shape our society.